TITLE 316 NEBRASKA ADMINISTRATIVE CODE, CHAPTER 33 ... · Pollution Control Tax Refund Act must be filed with the Tax Commissioner within three years from the date of payment of the

1 Title 316, Chapter 33

August 4, 2009

TITLE 316 NEBRASKA ADMINISTRATIVE CODE, CHAPTER 33

NEBRASKA DEPARTMENT OF REVENUE

RULES OF PRACTICE AND PROCEDURE FOR THE


TO ADOPT AND PROMULGATE THE FOLLOWING NEW REGULATIONS:

REG-33-001 DEFINITIONS

REG-33-002 CLAIMS FOR REFUND

REG-33-003 PETITION FOR REDETERMINATION

REG-33-004 PROCEEDINGS INITIATED BY THE NEBRASKA DEPARTMENT OF

REVENUE

REG-33-005 CONTESTED CASE: GENERAL

REG-33-006 UNUSED

REG-33-007 HEARING OFFICER

REG-33-008 REPRESENTATION

REG-33-009 PROHIBITIONS AGAINST EX PARTE COMMUNICATIONS

REG-33-010 INTERVENTION IN A CONTESTED CASE

REG-33-011 PREHEARING PROCEDURE

REG-33-012 CONDUCTING A CONTESTED CASE HEARING

REG-33-013 BURDEN OF PROOF

REG-33-014 DECISION AND ORDER IN A CONTESTED CASE

REG-33-015 APPEAL


August 4, 2009

TITLE 316 NEBRASKA ADMINISTRATIVE CODE, CHAPTER 33


RULES OF PRACTICE AND PROCEDURE FOR THE


REG-33-001 SCOPE AND DEFINITIONS

001.01 These regulations govern practice and procedure for the Nebraska Department of

Revenue arising from and as required under any law administered, enforced, or supervised by the

Nebraska Department of Revenue or the Tax Commissioner, except where a specific regulation

of the Department applies.

001.02 Definitions. The following definitions apply as used throughout Chapter 33 of

these rules and regulations.

001.02A Charitable Gaming Law means the statutory provisions of the Nebraska Bingo

Act, the Nebraska County and City Lottery Act, the Nebraska Lottery and Raffle Act, the

Nebraska Small Lottery and Raffle Act, and the Nebraska Pickle Card Lottery Act.

001.02B Claim means a request for a refund or credit of any overpayment of tax.

001.02C Claimant means any person that files a claim for an overpayment of tax with the

Department.

001.02D Contested Case means a proceeding before the Department in which the legal

rights, duties, or privileges of specific parties are required by law or constitutional right to

be determined after a hearing before the Department.

001.02E Corporation means any corporation and any other entity that is taxed as a

corporation under the Internal Revenue Code.

001.02F Department means the Nebraska Department of Revenue.

001.02G Ex parte Communication means a communication as defined in subsection 33-

009.04 of these regulations.

001.02H Hearing Officer means the Tax Commissioner or individual or individuals

designated by the Tax Commissioner to conduct a hearing, contested case or other

proceeding pursuant to the Administrative Procedure Act, whether designated as the

presiding officer, administrative law judge, or some other title designation.

001.02I Nonlawyer means any person not duly licensed or otherwise authorized to

practice law in the State of Nebraska. The term also includes any entity or organization


August 4, 2009

not authorized to practice law by specific rule of the Nebraska Supreme Court, whether

or not it employs persons who are licensed to practice law.

001.02J Notice of Hearing means the notice issued by the Hearing Officer informing the

parties of the date on which the hearing on the merits of a contested case will be held.

001.02K Party means the person by or against whom a contested case is brought or a

person allowed to intervene in a contested case.

001.02L Person shall be defined in accordance with the statutes governing the tax under

consideration. If the term is not specifically defined in the statutes governing the tax,

person means bodies politic and corporate, county officials, societies, communities,

nonprofit organizations, nonprofit corporations, the public generally, individuals,

partnerships, limited liability companies, joint stock companies, associations and other

entities and organizations.

001.02M Petition means:

001.02M(1) A written request for redetermination of a notice of proposed

deficiency determination issued by the Department that includes a request for

hearing;

001.02M(2) A written request for a redetermination of a disapproved application

that includes a request for hearing;

001.02M(3) A written request for a hearing regarding any action initiated by the

Department under section 33-004 of these regulations;

001.02M(4) A written request to intervene in a contested case.

001.02N Petitioner means the taxpayer, permitholder, licensee, or applicant, or his or her

representative, or authorized successor in interest who timely files a petition for a

proceeding before the Department that contains all the necessary information.

001.02O Practice of law means the application of legal principles and judgment with

regard to the circumstances or objectives of another entity or person which require the

knowledge, judgment, and skill of a person trained as a lawyer. This includes, but is not

limited to, the following:

001.02O(1) Giving advice or counsel to another entity or person as to the legal

rights of that entity or person or the legal rights of others for compensation, direct

or indirect, where a relationship of trust or reliance exists between the party

giving such advice or counsel and the party to whom it is given;


August 4, 2009

001.02O(2) Selection, drafting, or completion, for another entity or person, of

legal documents which affect the legal rights of the entity or person;

001.02O(3) Representation of another entity or person in a court, in a formal

administrative adjudicative proceeding or other formal dispute resolution process,

or in an administrative adjudicative proceeding in which legal pleadings are filed

or a record is established as the basis for judicial review;

001.02O(4) Negotiation of legal rights or responsibilities on behalf of another

entity or person; or

001.02O(5) Holding oneself out to another as being entitled to practice law as

defined herein.

001.02P Security includes but is not limited to any of the following when supplied in the

amount and form required by the Department:

001.02P(1) Surety bonds executed by a surety company duly licensed and

authorized to do business within this state;

001.02P(2) Bonds or other obligations of the United States, the State of Nebraska,

or any city or county of the state based upon their actual market value;

001.02P(3) Certificates of deposit issued by a bank doing business in this state

and insured by the Federal Deposit Insurance Corporation in amounts not

exceeding the federally insured amount; or

001.02P(4) Cash.

001.02Q Tax Commissioner means the chief executive officer of the Department.

(Sections 77-369 and 77-27,154, R.R.S. 2003, sections 9-201, 9-301, 9-401, 9-501, and

9-601, R.R.S. 2007, sections 81-1262, 84-909, and 84-909.01, R.R.S. 2008, and sections 66-485,

49-801(16), 77-375, 77-1783.01, 77-2711(1)(a), and 77-27,119, R.S. Supp. 2008.)


August 4, 2009

REG-33-002 CLAIMS FOR REFUND

002.01 These rules shall be followed when filing a claim for refund.

002.01A Content. The following information shall be supplied by a claimant filing a

claim with the Tax Commissioner. The claim shall:

002.01A(1) Identify the claimant;

002.01A(2) State all legal or factual reasons for believing the claim should be

granted;

002.01A(3) Demand the amount of tax or fee requested by the claimant;

002.01A(4) Be in writing and signed by or on behalf of the claimant;

002.01A(5) Include a request for hearing if one is desired; and

002.01A(6) In the case of a claim for a refund of Nebraska sales and consumer’s

use taxes paid for a pollution control facility under the Air and Water Pollution

Control Tax Refund Act, the claim must be accompanied by the items outlined in

Reg 1-084.

002.01B Filing date. A claim is considered filed with the Tax Commissioner on the date

that it is received by the Tax Commissioner, or if delivered by United States mail, the

claim is considered filed with the Tax Commissioner on the date of the postmark of the

United States post office stamped on the envelope. Postmarks made by other than the

United States post office will not be accepted as evidence of the filing date of any claim

received after the due date. When the last day for filing falls on Saturday, Sunday, or an

approved holiday, the claim will be considered timely if received or postmarked on the

next succeeding day which is not a Saturday, Sunday, or an approved holiday. The period

fixed by statute within which to file a claim cannot be extended.

002.01B(1) Sales and use tax, lodging tax, and litter fee. A claim for refund of

sales and use tax, lodging tax, or litter fee must be filed with the Tax

Commissioner by the person who made the overpayment or his or her attorney,

executor, or administrator within three years from the last day of the month

following the close of the period for which the overpayment was made, within six

months after any determination became final under the provisions of the Nebraska

Revenue Act of 1967, or within six months from the date of overpayment with

respect to such determinations, whichever of these three periods expires latest

unless the claim relates to a period for which a waiver has been given.

002.01B(2) Sales or use tax under the Air and Water Pollution Control Tax

Refund Act. A claim for refund of sales or use tax under the Air and Water


August 4, 2009

Pollution Control Tax Refund Act must be filed with the Tax Commissioner

within three years from the date of payment of the applicable sales or use tax. See

Reg 1-084.

002.01B(3) Income tax.

002.01B(3)(a) A claim for refund of income tax must be submitted on the

appropriate original or amended income tax return for the taxable year(s)

involved and shall be filed with the Tax Commissioner within three years

from the time the original return was filed, or within two years from the

date of payment of the tax, whichever is later, unless one of the following

applies.

002.01B(3)(a)(i) If the amount of the claimant’s federal adjusted

gross income, taxable income or tax liability reported on his or her

federal income return, for any taxable year was changed or

corrected by the Internal Revenue Service, or if the claimant was

required to report a change or correction which is treated as if it

were an overpayment for federal income tax purposes, or if the

claimant was required to file an amended return with the Tax

Commissioner, a claim for any overpayment of tax resulting from

such change shall be filed within two years from the time the

notice of such change or correction or such amended return was

required to be filed with the Tax Commissioner. See Reg 22-

015.07, Reg 23-010.05 and Reg 24-046.06; or

002.01B(3)(a)(ii) If the claimant was required to report a change or

correction in the amount of income taxable or tax credit allowable

in one or more states and such changes or corrections result in an

overpayment of tax when reflected in the return filed under the

Nebraska Revenue Act of 1967, a claim resulting from such

change shall be filed by the claimant within two years from the

time the notice of such change or correction or such amended

return was required to be filed with the Tax Commissioner or ten

years from the due date of the return, whichever is earliest. See

Reg 22-018.07, Reg 23-014.07 and Reg 24-063.06.

002.01B(3)(b) Any return filed before the last day prescribed by statute for

filing the return determined without regard to any extension, shall be

considered as filed on such last day.

002.01B(3)(c) If an agreement for an extension of an assessment period was

signed by the parties within the time otherwise allowed for claims, the written

claims must be filed within six months after the expiration of the agreement or

within the time otherwise provided above, whichever is later. An agreement


August 4, 2009

between the taxpayer and the Internal Revenue Service providing for the

extension of the period for the mailing of a notice of deficiency of federal income

taxes shall constitute an agreement with the Tax Commissioner to extend the

period for filing claims through six months after the ending date shown on the

federal agreement. A copy of all such agreements and extensions shall be filed

with the Tax Commissioner within thirty days after their execution.

002.01B(4) Financial institution franchise tax. A claim for refund of the franchise

tax on financial institutions must be filed within 90 days after the date on which:

002.01B(4)(a) The tax was due or was paid, whichever is later; or

002.01B(4)(b) A change was made to the amount of deposits or the net

financial income of the financial institution by a state or federal regulatory

agency.

002.01B(5) Petroleum release remedial action fee. A claim for credit or refund of

the petroleum release remedial action fee must be filed with the Tax

Commissioner within three years after the date of payment of the fee. See Reg 73-

008.

002.01B(6) Aircraft fuels tax. A claim for refund of aircraft fuels tax where the

aircraft fuels were purchased and consumed in connection with flying instruction

conducted by an air school approved by the Federal Aviation Administration

(FAA) must be filed with the Tax Commissioner within seven months after the

date of purchase or invoice. See Reg 73-008.

002.01B(7) Estate and generation-skipping transfer tax. A claim for refund of

estate or generation-skipping transfer tax must be filed with the Tax

Commissioner within four years after the date of such overpayment or within one

year of a change in the amount of federal tax due, whichever is later.

002.01B(8) Motor fuels tax. A claim for credit or refund of motor fuels tax must

be filed with the Tax Commissioner within three years after the date of payment

of the tax. See Reg 73-008.

002.01B(9) Documentary stamp tax and other taxes where Nebraska statutes do

not provide for claims. A claim for credit or refund of documentary stamp tax or

any other tax where Nebraska statutes do not provide for a claim must be filed

with the Tax Commissioner within two years after the date of payment of the tax.

002.01B(10) Bingo tax, lottery by the sale of pickle cards tax, lottery/raffle tax,

and county/city lottery tax. A claim for refund of bingo tax, lottery by the sale of

pickle cards tax, lottery/raffle tax, and county/city lottery tax must be filed with

the Tax Commissioner by the person who made the overpayment or his or her


August 4, 2009

attorney, executor, or administrator within three years after the last day of the

month following the close of the period for which the overpayment was made,

within six months after any determination of tax became final under the

provisions of the Nebraska Revenue Act of 1967, or within six months after the

date of overpayment with respect to such determinations, whichever of these three

periods expires latest unless the credit relates to a period for which a waiver has

been given.

002.02 Limitation. The Department will not accept a claim for refund of a taxpayer’s

overpayment of tax under any program administered by the Department when the amount is less

than $2.00.

002.03 Request for hearing. A claim shall not be presumed to be a request for a hearing.

Unless the claim is approved in full by the Tax Commissioner, the Tax Commissioner shall grant

a petitioner an opportunity for a hearing if requested in writing by the claimant.

002.03A Income tax. In the case of a claim for refund of income tax, the request for

hearing must be made when the claim is filed.

002.03B For all other claims, the request for a hearing must be made when the claim is

filed or prior to the Department taking any action on the claim.

002.03C Sales and use tax, lodging tax, and litter fee. After the claim is filed, the Tax

Commissioner shall allow or disallow a claim within 180 days. A written request for a

hearing shall be deemed a waiver of the 180-day period. The claimant and the Tax

Commissioner may also agree to extend the 180-day period.

002.04 Commencement of a contested case. Unless the claim is approved in full by the

Tax Commissioner, a claim becomes a contested case if the taxpayer makes a request in writing

for a hearing.

002.05 The payment of a claim for refund, the allowance of a credit, or the application of

a refund to an existing balance, in whole or in part, shall be considered a final decision of the

Tax Commissioner for purposes of the Administrative Procedure Act.

002.06 The denial of a claim, in whole or in part, shall be considered a final action of the

Tax Commissioner and may be appealed in accordance with the Administrative Procedure Act

for all tax programs except for the estate and generation-skipping transfer tax.

(Sections 76-908, 77-369, 77-1777, 77-1778, 77-1779, 77-1780, 77-2106.01, 77-2610,

77-2795, 77-27,150, and 77-27,154, R.R.S. 2003, section 3-151, 9-240, 9-239, 9-344, 9-429, and

9-648, R.R.S. 2007, sections 81-1260, 84-909(1), and 84-909.01 R.R.S. 2008, and sections 66-

498, 77-2708(2), 77-2711(1)(a), 77-2775, 77-2793, 77-2794, 77-27,119, 77-3806, and 81-1559,

R.S. Supp. 2008)


August 4, 2009

REG-33-003 PETITION FOR REDETERMINATION

003.01 These rules shall be followed when filing a petition for redetermination in

response to a notice and demand for payment issued pursuant to section 77-1783.01, R.S. Supp.

2008 or a notice of proposed deficiency determination.

003.01A Content. This information shall be supplied by the petitioner when filing a

petition for redetermination with the Tax Commissioner. The petition shall:

003.01A(1) Identify the petitioner;

003.01A(2) Identify the notice of proposed deficiency determination or the notice

and demand for payment the petitioner is requesting be redetermined;

003.01A(3) State all legal or factual reasons for believing that the notice of

proposed deficiency determination should be redetermined;

003.01A(4) Clearly demand the relief sought by the petitioner;

003.01A(5) Be in writing and signed by or on behalf of the petitioner; and

003.01A(6) Include a request for hearing if one is desired.

003.01A(7) When the Tax Commissioner approves and implements an electronic

form or method for filing a petition, any such petition for redetermination may be

filed electronically with the Department if it contains all the information required

by this subsection. The petition may be filed using the Web site of the

Department (www.revenue.ne.gov).

003.01B Filing date. Except as provided in subdivisions 003.01B(1) or 003.01B(2) of

this subsection, a petition for redetermination of a notice of proposed deficiency

determination must be filed with the Tax Commissioner on or before the 60th

day

following the mailing of the notice by the Tax Commissioner.

003.01B(1) A petition for the redetermination of a notice of proposed deficiency

determination for drug tax or for a notice of jeopardy determination must be filed

with the Tax Commissioner on or before the 10th

day following the mailing of the

notice.

003.01B(2) A petition for the redetermination of a notice of proposed deficiency

determination for income tax, if the petitioner was outside the United States as of

the date of the mailing of the notice, must be filed with the Tax Commissioner on

or before the 150th

day following the mailing of the notice.

003.01B(3) A petition for the redetermination of a notice and demand for


August 4, 2009

payment issued to any officer or employee of a corporation or any member,

manager, or employee of a limited liability company with the duty to collect,

account for, or pay over any taxes imposed upon a corporation, or with the

authority to decide whether the corporation will pay taxes imposed upon a

corporation, must be filed with the Tax Commissioner on or before the 60th

day

following the mailing of the notice by the Tax Commissioner.

003.01C When specifically provided by law, the Tax Commissioner may require the

posting of security during the pendency of a contested case. This security must be

maintained during the course of the proceeding before the Tax Commissioner. If during

the course of any proceeding before the Tax Commissioner the security so provided is

withdrawn, the petition will not be considered to be in proper form and will be subject to

dismissal by the Tax Commissioner.

003.02 These rules shall be followed when filing a request for a redetermination of a

disapproved tax application.

003.02A Content. This information shall be supplied by petitioner when filing a request

for redetermination of a disapproved tax application. The request shall:


003.02A(2) Identify the disapproved application;

003.02A(3) State all legal or factual reasons for believing the item under

consideration should be redetermined;

003.02A(4) Clearly demand the relief sought by the petitioner;

003.02A(5) Be in writing and signed by or on behalf of the person making the

request; and

003.02A(6) Include a request for hearing if one is desired.

003.02A(7) When the Tax Commissioner approves and implements an electronic

form or method for filing a petition, any such petition for redetermination of a

disapproved tax application may be filed electronically with the Department if it

contains all the information required by this subsection. The petition may be filed

using the Web site of the Department (www.revenue.ne.gov).

003.02B Filing date. Petitioner must file a written request for redetermination of a

disapproved tax application with the Tax Commissioner on or before the 30th

day

following the date of disapproval unless a shorter time period has been provided for by


August 4, 2009

statute.

003.03 The Department may deny a license or permit application under the Charitable

Gaming Law. These rules shall be followed when any license or permit application is subject to

denial.

003.03A Cause for denial. Upon receipt of a license or permit application, the

Department shall review the application to determine whether or not a license or permit

should be issued. A license or permit application or renewal application may be denied

for cause.

003.03B Notice of intended license or permit denial. If the Department determines that a

license or permit application should be denied, it shall give notice to the applicant of its

intention. Notice shall be given in writing by certified mail, return receipt requested, to

the license or permit applicant or his or her authorized representative. The notice of

intended denial shall:

003.03B(1) Identify the applicant and the license or permit to be denied;

003.03B(2) State all legal or factual reasons why the application is to be denied,

sufficient to allow the applicant to know the exact basis for the denial; and

003.03B(3) Inform the applicant that a written petition requesting a

redetermination of the intended license or permit application denial through a

hearing may be filed with the Department on or before the 30th

day following the

mailing date of the notice to the applicant of the Department’s intent to deny the

license or permit application.

003.03C If the applicant does not file a written petition with the Department on or before

the 30th

day following the mailing date of the Department’s notice to the applicant of its

intent to deny the license or permit application, the Department’s action denying the

application shall be considered final.

003.04 These rules shall be followed when filing a request for a redetermination of an

intended license or permit application denial.

003.04A Content. This information shall be supplied by petitioner when filing a request

for redetermination of an intended license or permit application denial. The request shall:


003.04A(2) Identify the license or permit application;

003.04A(3) State all legal or factual reasons for believing the item under

consideration should be redetermined;


August 4, 2009

003.04A(4) Demand the relief sought by the petitioner; and

003.04A(5) Be in writing and signed by or on behalf of the petitioner.

003.04A(6) When the Tax Commissioner approves and implements an electronic form

or method for filing a petition, any such petition for redetermination of an intended

denial of a license or permit application may be filed electronically with the

Department if it contains all the information required by this subsection. The petition

may be filed using the Web site of the Department (www.revenue.ne.gov).

003.04B Filing date. Petitioner must file a written request for redetermination of an

intended denial of a license or permit application with the Department on or before the

30th

day following the mailing date of the notice to the applicant of the Department’s

intent to deny the license or permit application.

003.05 Request for hearing. A petition for redetermination of a notice of proposed

deficiency determination, request for redetermination of a disapproved tax application, or a

request for a redetermination of an intended Charitable Gaming license or permit application

denial shall not be presumed to be a request for a hearing. The Tax Commissioner shall grant a

petitioner an opportunity for a hearing if the petitioner so requests in his or her petition or if the

petitioner amends his or her petition and requests a hearing. A petition for redetermination of a

notice and demand for payment issued pursuant to section 77-1783.01, R.S. Supp, 2008 is

presumed to be a request for hearing.

003.06 Joinder of parties. If multiple notices of proposed deficiency determination are

mailed to a number of persons based on similar or identical grounds, they may not join in filing

one protest petition, except where a joint notice of proposed deficiency determination is sent to

parties who filed a joint return; however, a motion for consolidation may be considered after the

individual protest petitions have been filed. Parties may be joined with the approval of the Tax

Commissioner under any of the other types of proceedings.

003.07 Filing date. A petition is considered filed with the Tax Commissioner on the date

that it is received by the Tax Commissioner, or if delivered by the United States mail, the

petition is considered filed with the Tax Commissioner on the date of the postmark of the United

States post office stamped on the envelope. Postmarks made by other than the United States post

office will not be accepted as evidence of the filing date of any petition received after the due

date. When the last day for filing falls on Saturday, Sunday, or an approved holiday, the filing

will be considered timely if received or postmarked on the next succeeding day which is not a

Saturday, Sunday, or an approved holiday. The period fixed by statute within which to file a

petition cannot be extended. If a petition is not filed within the statutory period, it will not be

considered by the Tax Commissioner but will be returned to the petitioner by certified mail,

return receipt requested.


August 4, 2009

(Sections 66-4,117, 66-695, 77-369, 77-2105, 77-2612 , 77-2710, 77-2786, 77-2778, 77-2785,

77-27,125, and 77-3006, R.R.S. 2003, sections 57-717 and 57-718, R.R.S. 2004, section 3-149,

9-226, 9-226.01, 9-226.02, 9-240, 9-322, 9-322.02, 9-344, 9-418, 9-418.01, 9-429, 9-620, 9-622,

and 9-648, R.R.S. 2007, sections 84-909, and 84-909.01, R.R.S. 2008, and sections 77-375, 77-

612, 77-1783.01, 77-2709, 77-2711(1)(a),77-2776, 77-2777, 77-2778, and 77-27,119, R.S.Supp.

2008.)


August 4, 2009

REG-33-004 PROCEEDINGS INITIATED BY THE NEBRASKA DEPARTMENT OF

REVENUE

004.01 The Department may initiate a proceeding against a person who has failed to

comply with the tax laws that are administered by the Department.

004.02 Revocation of a sales and use tax permit, lodging tax permit, litter fee license, or

mechanical amusement device license. Whenever the holder of a sales and use tax permit,

lodging tax permit, litter fee license, or mechanical amusement device license fails to comply

with any provision of the sales and use tax portion of the Revenue Act, the Nebraska Visitor’s

Development Act, the Nebraska Litter Reduction and Recycling Act, or the Mechanical

Amusement Device Tax Act, or with any rule or regulation of the Department with regard to

such acts, the Department may initiate a hearing to require the permitholder or licensee to show

cause why his or her permit or license should not be revoked.

004.02A The Department must give the permitholder or licensee at least 20 days notice

prior to the show cause hearing. The notice shall be in writing, specifying the time and

place of the hearing, and shall be sent by certified mail, return receipt requested.

004.02B The Tax Commissioner or any Hearing Officer designated by the Tax

Commissioner, may examine any books, papers, or memoranda bearing upon the matter

at issue and require the attendance of any permitholder, licensee, or employee of the

permitholder or licensee having knowledge pertinent to the issue.

004.02C The Tax Commissioner shall make a final decision or determination within a

reasonable time after the hearing and notify the permitholder or licensee by registered or

certified mail of the decision or determination.

004.03 Suspension or revocation of a License to Transport Unstamped Cigarettes,

License to Sell Tobacco, Tobacco Products Tax Act license, Wholesale Cigarette Dealer’s

Permit or discount privileges. The Tax Commissioner may revoke or suspend the license, permit

or discount privileges granted under sections 28-1420 to 28-1429, R.R.S. 2008, sections 77-

2601 to 77-2622, R.R.S. 2003, of any person who violates any of the provisions of sections 77-

2601 through 77-2622, R.R.S. 2003, any stamping agent who violates any provisions of section

69-2706(3), R.S. Supp. 2008, or any rules and regulations adopted by the Department, including

failure to timely file the required reports by giving notice by certified mail, return receipt

requested, to the licensee. The Tax Commissioner may revoke, cancel, or suspend any license

for a violation of the Tobacco Products Tax Act or any rule or regulation adopted and

promulgated by the Tax Commissioner in administering the act by giving notice by certified

mail, return receipt requested, to the licensee.

004.04 Notice of proposed deficiency of Tobacco Products Tax. If, after examination of

any tobacco products tax return, the Tax Commissioner finds that the return is incorrect, and any

amount of tax due from the tobacco products tax licensee is unpaid, the Tax Commissioner shall

notify the licensee, by registered or certified mail, of the proposed deficiency.


August 4, 2009

004.05 Procedures. The following procedures apply to suspension or revocation of any

of the licenses mentioned in Reg. 004.03 or a notice of proposed deficiency of tobacco products

tax as mentioned in Reg. 004.04.

004.05A The permitholder or licensee may file a written petition with the Department

within 20 days after receipt of the notice of intent to cancel, revoke or suspend or within

20 days after the receipt of the notice of proposed deficiency requesting an oral hearing.

The content of the petition shall be similar to that found in subsection 33-003.01A of

these regulations. When the Tax Commissioner approves and implements an electronic

form or method for filing a request for a hearing, any such request may be filed

electronically with the Department using the Web site of the Department

(www.revenue.ne.gov) so long as it contains all the information required by this

subsection.

004.05B At the hearing, the Tax Commissioner, or any Hearing Officer designated by

the Tax Commissioner, may examine any books, papers, or memoranda bearing upon the

matter at issue and require the attendance of any permitholder or licensee or any officer

or employee of the permitholder or licensee having knowledge pertinent to the issue.

004.05C During the hearing, the Tax Commissioner or his or her designee, shall not be

bound by the rules of evidence, and no informality in any proceeding or in the manner of

taking testimony shall invalidate any order or decision made or approved by the Tax

Commissioner.

004.05D The Tax Commissioner shall make a final decision or final determination within

a reasonable time after the hearing and notify the permitholder or licensee by registered

or certified mail of such decision or determination.

004.06 Collection of delinquent taxes from a responsible corporate officer or employee,

or any member, manager, or employee of a limited liability company. Any corporate officer or

employee, or any member, manager, or employee of a limited liability company, with the duty to

collect, account for, or pay over any taxes imposed upon a corporation or limited liability

company or with the authority to decide whether the corporation or limited liability company

will pay taxes imposed upon a corporation or limited liability company, shall be personally liable

for the payment of taxes in the event of willful failure on his or her part to have a corporation or

limited liability company perform such act.

004.06A Before collection from a responsible corporate officer or employee or a

member, manager, or employee of a limited liability company, a written notice and

demand for payment must be mailed to the responsible corporate officer or employee, or

the member, manager, or employee of the limited liability company by certified mail,

return receipt requested.

004.06B Any corporate officer or employee, or a member, manager or employee may


August 4, 2009

challenge the Tax Commissioner’s determination by filing a petition for the

redetermination of the corporate officer’s or employees, or a member’s, manager’s, or

employee’s personal liability, the amount of the corporation’s or limited liability

company’s unpaid taxes or both within 60 days following the mailing of the notice and

demand for payment. If a petition for redetermination is not filed within the 60 day period

the determination becomes final.

004.06C If the Department determines that further delay in collection of the delinquent

taxes from the corporate officer or employee, or the member, manager, or employee of a

limited liability company will jeopardize collection proceedings, nothing in this

regulation will prevent the immediate collection of the taxes.

004.07 The Department may initiate a proceeding against a person who has failed to

comply with the provisions of the Charitable Gaming Law or any regulations adopted pursuant to

these acts.

004.07A Whenever the holder of a license or permit under the Charitable Gaming Law

fails to comply with any provision of the Charitable Gaming Law or any regulation

adopted pursuant to these acts, the Department may suspend, cancel, or revoke for cause

all rights and privileges granted to a licensee or permitholder.

004.07B Order of suspension.

004.07B(1) The Tax Commissioner may enter an order of suspension to a

permitholder or licensee if the Department determines that the permitholder or

licensee is in noncompliance with the provisions of the Charitable Gaming Law,

or regulations adopted pursuant to these Acts.

004.07B(2) Before any license or permit is suspended prior to a hearing, notice of

an order to suspend a license or permit must be mailed to or personally served

upon the permitholder or licensee at least 15 days before the order of suspension

takes effect. The order of suspension must be in writing and be personally served

or sent by certified mail, return receipt requested.

004.07B(3) No such suspension shall be issued prior to a hearing to any nonprofit

organization or any volunteer fire company or volunteer first-aid, rescue,

ambulance, or emergency squad licensed to conduct a lottery by sale of pickle

cards pursuant to section 9-326 R.R.S. 2007 of the Nebraska Pickle Card Lottery

Act or any person licensed pursuant to the Nebraska County and City Lottery Act.

004.07B(4) An order of suspension pursuant to 004.07B (1) and (2) may be issued

when an action for suspension, cancellation, or revocation is pending.


August 4, 2009

004.07B(5) The permitholder or licensee may file a written petition with the

Department within 15 days after the mailing date of the order of suspension

requesting reconsideration of such suspension.

004.07B(6) The content of the petition shall be similar to that found in subsection

33-003.01A of these regulations, except that the petitioner may request that the

hearing for suspension be held after 20 days from when the suspension takes

effect. When the Tax Commissioner approves and implements an electronic form

or method for filing such a request for a hearing, any such request may be filed


(www.revenue.ne.gov) so long as it contains all the information required by this

subsection.

004.07B(7) A hearing for suspension shall be held within 20 days of the date the

suspension takes effect whether or not a permitholder or licensee files a petition

for reconsideration of the suspension except that a request by the licensee or

permitholder to hold the hearing after the end of the 20-day period shall extend

the suspension up to the time of hearing. Any such request must be contained in

the petition.

004.07B(8) The Department shall serve notice upon the permitholder or licensee

by certified mail, return receipt requested, of the time, date, and place of a hearing

at least ten days before the hearing is to be held.

004.07B(9) At the redetermination hearing, the permitholder or licensee may

present evidence that the violations for which the suspension has been imposed

have been corrected and that the licensee is currently in compliance with the law.

Upon such showing, the Tax Commissioner may lift the suspension.

004.07B(10) The decision of the Department shall be made within 20 days after

the conclusion of the hearing. The suspension shall continue in effect until the

decision is issued. If the decision is that an order of suspension, revocation, or

cancellation is not appropriate, the suspension shall terminate immediately by

order of the Tax Commissioner. If the decision is an order for the suspension,

revocation, or cancellation of the license or permit, the suspension shall continue

pending an appeal of the decision of the Department.

004.07C Suspension, cancellation, or revocation of a license or permit.

004.07C(1) Cause for suspension, cancellation, or revocation. Cause shall

generally mean any noncompliance with the provisions of the Charitable Gaming

Law, or any regulation adopted pursuant to these acts.

004.07C(2) Notice of suspension, cancellation, or revocation proceeding shall be

served upon the licensee or permitholder by personal service or certified mail,


August 4, 2009

return receipt requested, at least ten days prior to the hearing. This notice shall

inform the licensee of the time, date, and place of hearing.

004.07C(3) The procedures for suspension, cancellation, or revocation of a

license or permit shall be considered separate from an order of suspension under

004.07B.

004.08 Cease and desist orders. The Department may issue a cease and desist

order to any person, permitholder or licensee under the Charitable Gaming Law if the

Department determines that a practice engaged in by the person, permitholder or licensee

is not in compliance with the acts or regulations adopted pursuant to such acts. This

order shall take effect upon issuance by the Department.

004.08A cease and desist orders shall contain:

004.08A(1) A statement of the violation of the Charitable Gaming Law

constituting the reasons for the entry of such an order;

004.08A(2) A statement of the practice or practices engaged in by the person,

permitholder or licensee which are to be discontinued; and

004.08A(3) A statement of the rights of the person, permitholder or licensee to

request a hearing for review of the cease and desist order entered by the Tax

Commissioner.

004.08B The notice of order shall be in writing and personally served or mailed to the

person, permitholder or licensee by certified mail, return receipt requested. If the notice

of order is mailed, the date of mailing shall be deemed the date of service of notice to the

person, permitholder, or licensee.

004.08C The person, permitholder, or licensee receiving a cease and desist order may file

a petition requesting reconsideration of such order.

004.08D The content of the petition shall be similar to that found in subsection 33-

003.01A of these regulations. When the Tax Commissioner approves and implements an

electronic form or method for filing a request for a hearing, any such request may be filed


(www.revenue.ne.gov) if it contains all the information required by this subsection.

004.08E A request for hearing by the person, permitholder or licensee shall be made in

writing and filed with the Department within 30 days after service of the cease and desist

order. If the notice of order is mailed by certified mail, the date the notice is mailed shall

be deemed to be the date of service. If a request for hearing is not filed within the 30 day

period, the cease and desist order becomes permanent at the expiration of such period.


August 4, 2009

004.08F If a hearing is requested, the hearing shall be held within 30 days after the

request for hearing is received by the Department.

004.08G Within 20 days of the date of the hearing, the Tax Commissioner shall issue an

order vacating the order or making it permanent as the facts require.

004.08H The person, permitholder, or licensee receiving a cease and desist order shall be

deemed to be in default if he or she fails to appear at the hearing and the allegations

contained in the order shall be deemed to be true.

004.08I A cease and desist order issued to a person, permitholder, or licensee shall not

affect the validity of the license or permit held by the person, permitholder, or licensee

and shall only affect the practice or practices alleged to be in violation of the Charitable

Gaming Law.

004.09 Administrative fines. The Department may institute a proceeding to levy an

administrative fine against any person, permitholder, or licensee for violations of the Charitable

Gaming Law and any regulations adopted pursuant to such Law.

004.09A The notice of a proceeding to levy an administrative fine shall be served upon

the person, licensee, or permitholder, by personal service or certified mail, return receipt

requested, at least ten days prior to the proceeding. The notice shall inform the alleged

violator of the time, date, and place of hearing.

004.09B For every violation of the Charitable Gaming Law or any regulation adopted

pursuant to such Law, the Tax Commissioner may impose the maximum fine authorized

by law. Each violation may be the subject of such a fine.

004.09C Any administrative fines levied pursuant to the Charitable Gaming Law and

regulations adopted pursuant to these laws shall be subject to all collection measures

available to the Department on behalf of the State.

004.10 The administrative remedies provided in sections 33-004.07 through 33-004.09 of

these regulations, are not exclusive and may be imposed in combination as the result of a single

proceeding. For example, a cease and desist order may also be accompanied by a proceeding to

levy an administrative fine.

(Sections 77-2615.01, 77-2622, 77-27,111, 77-27,118, 77-27,135, 77-3003, and 77-4001

through 77-4025, R.R.S. 2003, sections 9-226, 9-226.02, 9-228, 9-229, 9-322, 9-322.01, 9-

418.02, 9-419, 9-420, 9-421, 9-620, 9-621, 9-623, and 21-2612, R.R.S. 2007, sections 81-1260,

and 81-1560.01, R.R.S. 2008, sections 77-1783.01, and 77-2705, R.S. Supp. 2008, and Jones v.

State, 248 Neb. 158, 532 N.W.2d 636 (1995))


August 4, 2009

REG-33-005 CONTESTED CASE: GENERAL

005.01 A contested case begins with the filing of a petition or claim and request for

hearing, if applicable, with the Department. The petition or claim is the initial document filed by

or with the Department that sets forth a request for Department action.

005.02 The pleadings in a contested case may include a petition, claim, notice, motion,

stipulation, objection or order or other formal written document filed in a proceeding before the

Department. Any pleading filed in a contested case shall meet the following requirements.

005.02A The pleading shall contain a heading specifying the Department and the title or

nature of the pleading, shall state material factual allegations and the action the

Department is being requested to take, shall contain the name and address of the

petitioner or claimant, and shall be signed by the party filing the pleading or the party’s

authorized representative. If applicable, the pleading shall include the address, telephone

number of the party’s authorized representative, and, if the representative is an attorney,

the representative’s bar number.

005.02B All pleadings shall be legibly typewritten, photostatically reproduced, printed, or

handwritten. If handwritten, a pleading must be written in ink.

005.03 All pleadings, except for the petition, shall be filed with the Department at its

office. Filing may be accomplished by personal delivery, United States mail, or by the method

established by the parties at the preliminary conference as provided in section 011.03B of this

Title, and will be received during the Department’s regular office hours.

005.04 All pleadings subsequent to the initial petition or claim shall be served by the

party filing the pleading upon all attorneys of record or other representatives of record and upon

all unrepresented parties. Service shall only be made personally, by first-class or certified mail,

or by the method established by the parties at the preliminary conference as provided in section

011.03B of this Title. Proof of such service shall be filed with the Department.

005.05 When a hearing is required, a hearing date shall be set by the Hearing Officer in

accordance with statutory requirements. A written notice of the time and place of hearing and the

name of the Hearing Officer, if known, shall be served by the Department upon all attorneys of

record or other representatives of record and upon all unrepresented parties. The notice must

include a proof of such service and will be filed with the Department.

005.06 In computing time prescribed or allowed by Chapter 33 or by any applicable

statute in which the method of computing time is not specifically provided, days will be

computed by excluding the day of the act or event and including the last day of the period. If the

last day falls on a Saturday, Sunday, or state holiday, the period shall include the next business

day.


August 4, 2009

(Sections 66-4,117, 66-695, 77-369, 77-1777, 77-1778, 77-1779, and 77-1780, R.R.S.

2003, sections 57-717, and 57-718, R.R.S. 2004, section 3-149, R.R.S. 2007, sections 84-909(1)

and 84-909.01 R.R.S. 2008, and sections 77-375, 77-612, 77-1783.01, 77-2709, 77-2711(1)(a),

77-2793, 77-2794, and 77-27,119, R.S. Supp. 2008)

REG-33-006 RESERVED


August 4, 2009

REG-33-007 HEARING OFFICER

007.01 The Tax Commissioner has the authority to designate an individual or individuals

to act as a Hearing Officer for the Department. Different individuals may act as a Hearing

Officer at different times or for different aspects of any contested case.

007.02 An individual who has served as an investigator, prosecutor, or advocate in a

contested case or in its prehearing stage may not serve as a Hearing Officer or assist or advise a

Hearing Officer in the same proceeding except as provided in subsection 007.04.

007.03 An individual who is subject to the authority, direction, or discretion of one who

has served as an investigator, prosecutor, or advocate in a contested case or in its prehearing

stage may not serve as a Hearing Officer or advise a Hearing Officer in the same proceeding

except as provided in subsection 007.04.

007.04 If all parties consent, an individual who has served as, or who is subject to the

authority, direction, or discretion of one who has served as investigator, prosecutor, or advocate

in a contested case or in its prehearing stage may assist a Hearing Officer in the preparation of

orders.

007.05 An individual who has participated in a determination of probable cause or other

equivalent preliminary determination in a contested case may serve as a Hearing Officer or assist

or advise a Hearing Officer in the same proceeding.

007.06 An individual may continue to serve as a Hearing Officer at successive stages of

the same contested case.

007.07 Powers and Duties. The Hearing Officer has the duty to conduct full, fair and

impartial hearings, to take appropriate action to avoid unnecessary delay in the disposition of the

proceeding, and to maintain order. He or she shall have the following powers:

007.07A To administer oaths and affirmations;

007.07B To issue subpoenas as authorized;

007.07C To compel discovery and to impose appropriate sanctions for failure to make

discovery;

007.07D To rule upon offers of proof and receive relevant, competent, and probative

evidence;

007.07E To regulate the course of the proceedings in the conduct of the parties and their

representatives;


August 4, 2009

007.07F To hold prehearing conferences for simplification of the issues, order of hearing,

settlement of the contested case, or any other proper purposes;

007.07G To consider and rule orally or in writing, upon all procedural and other motions

appropriate in adjudicative proceedings;

007.07H To fix the time for holding the record open for additional evidence or for

submission of briefs;

007.07I To exclude people from the hearing;

007.07J To issue recommended decisions, rulings, and orders, as appropriate; and

007.07K To order any other action consistent with the purpose of the law;

007.08 If the parties agree and the circumstances of the case permit it, the Hearing

Officer may order that the hearing be recorded electronically and without a transcriber.

(Sections 84-909, 84-909.01, and 84-913 through 84-913.04, R.R.S 2008, and sections 77-366

and 77-375, R.S. Supp. 2008)


August 4, 2009

REG 33-008 REPRESENTATION

008.01 In general. Representation before the Tax Commissioner is governed by the

applicable statutes and the decisions of the Nebraska Supreme Court.

008.02 Power of attorney. Any person appearing on behalf of a taxpayer as his or her

duly authorized representative with regard to any of the laws or programs administered,

enforced, or supervised by the Department or the Tax Commissioner must have on file with the

Department a Power of Attorney, Form 33, or its legal equivalent. Once a Power of Attorney,

Form 33, or its legal equivalent, has been filed with the Department, the Tax Commissioner will

presume that it is valid until written notice of its revocation is served.

008.03 Appearances. When the practice of law arises in the resolution of a contested

case, only the following individuals shall be allowed to appear on behalf of the petitioner.

008.03A A petitioner, claimant, or respondent who is an individual may appear on his or

her own behalf.

008.03B An individual may appear on behalf of the petitioner, claimant, or respondent if

the individual is admitted to practice law before the Nebraska Supreme Court.

008.03C An individual admitted to practice law in another United States jurisdiction may

appear on behalf of the petitioner, claimant, or respondent provided the individual:

008.03C(1) Has not been disbarred or suspended from practice in any jurisdiction;

008.03C(2) Has undertaken an association with an attorney who is admitted to

practice law before the Nebraska Supreme Court, who actively participates in the

contested case, and who shares responsibility for the representation of the

petitioner; and

008.03C(3) Files a motion with the Hearing Officer requesting he or she be

allowed to appear on behalf of the petitioner Pro hac vice.

008.04 Nonlawyers. A nonlawyer may be allowed to appear in a limited representative

capacity subject to the following.

008.04A A nonlawyer who is an officer of the party or an employee, provided a Power of

Attorney, Form 33, or its legal equivalent is on file for the employee, may represent the

party, if all of the following conditions are met.

008.04A(1) The nonlawyer officer or employee is specifically authorized by the

party to appear before the Department on its behalf.

008.04A(2) This representation is not the nonlawyer officer’s or employee’s


August 4, 2009

primary duty to the employer, but is secondary to other duties relating to the

management or operation of the petitioner, claimant, or respondent.

008.04A(3) The nonlawyer officer or employee does not receive separate or

additional compensation (other than reimbursement for costs) for this

representation.

008.04A(4) The representation does not involve a claim that the Department’s

action is illegal as a matter of law or unconstitutional.

008.04A(5) The representation does not require the knowledge, judgment, or skill

of a lawyer, or the preparation of legal briefs, or does not require the practice of

law;

008.04A(6) The Nebraska Evidence Rules applicable in the district courts do not

apply to the contested case.

008.04B A certified public accountant who is not an employee or officer of the petitioner,

claimant, or respondent may represent the petitioner if all of the following conditions are met.

008.04B(1) The representation does not involve a claim that the Department’s

action is illegal as a matter of law or unconstitutional.

008.04B(2) The representation does not require the knowledge, judgment, or skill

of a lawyer, or the preparation of legal briefs, or does not require the practice of

law.

008.04B(3) The Nebraska Evidence Rules as applicable in the district courts do

not apply to the contested case.

(Section 77-369, R.R.S. 2003, sections 84-909 and 84-909.01, R.R.S. 2008, and sections

77-2711 and 77-27,119 R.S. Supp. 2008)


August 4, 2009

REG-33-009 PROHIBITIONS AGAINST EX PARTE COMMUNICATIONS

009.01 Ex parte communication means an oral or written communication which is not on

the record in a contested case with respect to which reasonable notice to all parties was not

given. Ex parte communication shall not include:

009.01A Communications which do not pertain to the merits of a contested case;

009.01B Communications required for the disposition of ex parte matters as

authorized by law;

009.01C Communications in a ratemaking or rulemaking proceeding; and

009.01D Communications to which all parties have given consent.

009.02 Prohibitions; when applicable. The prohibitions found in this section shall apply

when the Notice of Hearing has been issued.

009.03 Prohibitions; to whom applicable.

009.03A Parties and public. No party in a contested case or other person outside the

Department having an interest in the contested case shall make or knowingly cause to be

made an ex parte communication to the Hearing Officer or the Tax Commissioner or

employee who is or may reasonably be expected to be involved in the decisionmaking

process of the contested case.

009.03B Persons in decision-making roles. Neither the Hearing Officer, the Tax

Commissioner nor any employee of the Department who is or may reasonably be

expected to be involved in the decision-making process of the contested case shall make

or knowingly cause to be made an ex parte communication to any party in a contested

case or other person outside the Department having an interest in the contested case.

009.03C Neither the Tax Commissioner nor any employee of the Department engaged in

the investigation or enforcement of a contested case shall make or knowingly cause to be

made an ex parte communication to the Hearing Officer, Tax Commissioner or any

employee of the Department who is or may reasonably be expected to be involved in the

decision-making process of the contested case.

009.04 Disclosure of contacts. The Hearing Officer, Tax Commissioner, or any employee

of the Department who is or may reasonably be expected to be involved in the decision-making

process of the contested case who receives or who makes or knowingly causes to be made an ex

parte communication set forth in subsections 009.02A through 009.02C is required to disclose

any such contact.

009.04A If an ex parte communication is made, the Hearing Officer, Tax Commissioner,


August 4, 2009

or employee of the Department shall file in the record of the contested case:

009.04A(1) All such written communications;

009.04A(2) Memoranda stating the substance of all such oral communication; and

009.04A(3) All written responses and memoranda stating the substance of all oral

responses to all ex parte communications.

009.04B The filing shall be made within two business days of the receipt or making of

the ex parte communication. Notice of the filing, with the opportunity to respond, shall

be given to all parties of record.

009.04C Filing and notice of filing provided under subsection 009.03B shall not be

considered on the record nor reasonable notice for purposes of the definition of ex parte

communication.

(Sections 84-909, 84-909.01, and 84-914(6), R.R.S. 2008)


August 4, 2009

REG-33-010 INTERVENTION IN A CONTESTED CASE

010.01 Intervention in a contested case shall be allowed when the following requirements

are met.

010.01A A petition for intervention must be submitted in writing to the Hearing Officer

at least five days before the hearing. Copies must be mailed by the petitioner for

intervention to all parties named in the Hearing Officer’s Notice of Hearing.

010.01B A petition must state facts demonstrating that the petitioner’s legal rights, duties,

privileges, immunities, or other legal interests may be substantially affected by the

proceeding or that the petitioner qualifies as an intervenor under any provision of law;

and

010.01C The Hearing Officer must determine that the interests of justice and the orderly

and prompt conduct of the proceedings will not be impaired by allowing the intervention

and that the intervention will not violate the rules of confidentiality governing the

Department unless waived by the person protected by the rules.

010.02 The Hearing Officer may grant a petition for intervention at any time upon

determining that the intervention sought is in the interests of justice and will not impair the

orderly and prompt conduct of the proceedings.

010.03 If a petition for intervention is granted, the Hearing Officer may impose

conditions upon the intervenor’s participation in the proceedings, either at the time that

intervention is granted or at any subsequent time. Those conditions may include:

010.03A Limiting the intervenor’s participation to designated issues in which the

intervenor has a particular interest demonstrated by the petition;

010.03B Limiting the intervenor’s use of discovery, cross-examination, and other

procedures to continue to promote the orderly and prompt conduct of the proceedings;

and

010.03C Requiring two or more intervenors to combine their presentation of evidence

and argument, cross-examination, discovery, and other participation in the proceedings.

010.04 The Hearing Officer, at least 24 hours before the hearing, shall issue an order

granting or denying each pending petition for intervention, specifying any conditions and briefly

stating the reasons for the order.

010.04A The Hearing Officer may modify the order at any time, stating the reasons for

the modification.

010.04B The Hearing Officer shall promptly give notice of an order granting,


August 4, 2009

denying, or modifying intervention to the petitioner for intervention and to all parties.

(Section 84-912.02 R.R.S. 2008.)


August 4, 2009

REG-33-011 PREHEARING PROCEDURES

011.01 Prehearing conferences and orders. The Hearing Officer will determine whether a

prehearing conference will be conducted. If a prehearing conference is not held, the Hearing

Officer may issue a prehearing order, based on the pleadings, to regulate the conduct of the

proceedings.

011.01A If a prehearing conference is conducted,

011.01A(1) The Hearing Officer shall promptly notify the Department and the

petitioner or claimant of the determination that a prehearing conference will be

conducted. The Department may assign another Hearing Officer for the

prehearing conference.

011.01A(2) The Hearing Officer for the prehearing conference shall set the time

and place of the prehearing conference and give reasonable written notice to all

parties and to all persons who have filed written petitions to intervene in the

matter. The notice shall include the following:

011.01A(2)(a) The names and mailing addresses of all parties and other

persons to whom notice is being given by the Hearing Officer;

011.01A(2)(b) The name, official title, mailing address, and telephone

number of any counsel or employee who has been designated to appear for

the Department;

011.01A(2)(c) The official docket or other reference number, the name of

the proceeding, and a general description of the subject matter;

011.01A(2)(d) A statement of the time, place, and nature of the prehearing

conference;

011.01A(2)(e) A statement of the legal authority and jurisdiction under

which the prehearing conference and the hearing are to be held;

011.01A(2)(f) The name, official title, and telephone number of the

Hearing Officer for the prehearing conference;

011.01A(2)(g) A statement that a party who fails to attend or participate in

a prehearing conference, hearing, or other stage of a contested case or who

fails to make a good faith effort to comply with a prehearing order may be

held in default under the Administrative Procedure Act; and

011.01A(2)(h) Any other matters that the Hearing Officer considers

desirable to expedite the proceedings.


August 4, 2009

011.01A(3) The Department shall give notice to other persons entitled to notice.

011.01B The Hearing Officer may conduct a prehearing conference, as may be

appropriate, to deal with issues such as:

011.01B(1) Exploring settlement possibilities;

011.01B(2) Preparing stipulations;

011.01B(3) Establishing a method and address for service of motions and

pleadings for all parties, including, but not limited to electronic mail or facsimile;

011.01B(4) Clarifying issues;

011.01B(5) Rulings on identity and limiting the number of witnesses;

011.01B(6) Objections to proffers of evidence, determination of the extent to

which direct evidence, rebuttal evidence, or cross-examination will be presented

in written form and the extent to which telephone, television, or other electronic

means will be used as a substitute for proceedings in person;

011.01B(7) Order of presentation of evidence and cross-examination;

011.01B(8) Rulings regarding issuance of subpoenas, discovery orders, and

protective orders;

011.01B(9) Rulings regarding whether or not a nonlawyer may represent the

petitioner under section 33-008.04 of these regulations;

011.01B(10) Rulings regarding whether or not the hearing will be transcribed; and

011.01B(11) Any other issues that will promote the orderly and prompt conduct

of the hearing.

011.01C The Hearing Officer shall issue a prehearing order incorporating the issues

determined at the prehearing conference.

011.01D The Hearing Officer may conduct all or part of the prehearing conference by

telephone, television, or other electronic means if each person in the conference has an

opportunity to participate in, to hear, and, if technically feasible, to see the entire

proceeding while it is taking place.

011.02 Discovery in contested cases. The Nebraska Supreme Court’s rules of procedure for

discovery in civil cases shall apply in contested cases before the Department.


August 4, 2009

011.02A The Hearing Officer, at the request of any party or upon the Hearing Officer’s

own motion, may issue subpoenas, discovery orders, and protective orders in accordance

with the rules of civil procedure except as may be otherwise prescribed by law.

Subpoenas and orders issued under this subsection may be enforced by the district court.

011.02B Any prehearing motion to compel discovery, motion to quash, motion for

protective order, or other discovery-related motion shall:

011.02B(1) Quote the interrogatory, request, question, or subpoena at issue, or be

accompanied by a copy of the interrogatory, request, subpoena or excerpt of a

deposition;

011.02B(2) State the reasons supporting the motion;

011.02B(3) Be accompanied by a statement setting forth the steps or efforts made

by the moving party or his or her counsel to resolve by agreement the issues

raised and that agreement has not been achieved; and

011.02B(4) Be filed with the Department. The moving party must serve copies of

all such motions to all parties to the contested case.

011.02C Other than as provided in subsection 011.02B(4) above, discovery materials

need not be filed with the Department.

011.03 Motions. Any party may file a motion with the Hearing Officer as soon as a party

becomes aware of facts requiring the motion. The motion must state a request for relief and

support for the relief requested. If the consent of all parties is not obtained, a hearing on the

motion may be scheduled and the parties notified. The burden will be on the party filing the

motion to show good cause why the motion should be granted. Notice will be given to all parties

of the ruling of the Hearing Officer on the motion.

011.03A Types of motions. Types of motions which may be made include but are not

limited to:

011.03A(1) Motion for continuance. The Hearing Officer may grant extensions of

time or continuances of hearings upon the Hearing Officer’s own motion or at the

timely request of any party for good cause shown. A party seeking a continuance

must file a written motion for continuance which states in detail the reasons why a

continuance is necessary and serve a copy of the motion on all other parties.

011.03A(1)(a) Good Cause. Good cause for an extension of time or

continuance includes, but is not limited to:

011.03A(1)(a)(i) Illness of the party, legal counsel or witness;


August 4, 2009

011.03A(1)(a)(ii) A change in legal representation;

011.03A(1)(a)(iii) Settlement negotiations are underway; or

011.03A(1)(a)(iv) The sudden occurrence of new issues or allegations.

011.03A(2) Motion for dismissal. The Hearing Officer may grant a motion for

dismissal for, but not limited to, the following grounds:

011.03A(2)(a) Lack of jurisdiction, including but not limited to whether

the petitioner is the proper party in the proceeding, whether there was a

notice of proposed deficiency determination, or whether the protest

petition was filed within the statutory time limit; or

011.03A(2)(b) Upon a party being held in default under the

Administrative Procedure Act for failure to attend or participate in a

prehearing conference, hearing, or other stage of a contested case, or who

fails to make a good faith effort to comply with a prehearing order.

011.03A(3) Motions for consolidation may be granted in the following instances.

011.03A(3)(a) The same taxpayer has received separate notices of

proposed deficiency determination relating to different taxable years or

companies and has filed a separate petition for each notice.

011.03A(3)(b) Different taxpayers have received notices of deficiency

determination based on the same general issues. Some examples are:

011.03A(3)(b)(i) Stockholders, as to basis of stock sold or

exchanged, gain or loss on reorganization, status of dividends

received;

011.03A(3)(b)(ii) Partners;

011.03A(3)(b)(iii) Affiliated corporations;

011.03A(3)(b)(iv) A husband and wife who received separate

notices of proposed deficiency determination;

011.03A(3)(b)(v) Transferees;

011.03A(3)(b)(vi) A lessor and lessee;


August 4, 2009

011.03A(3)(b)(vii) Corporations involved in reorganizations;

011.03A(3)(b)(viii) Beneficiaries of estates or trusts;

011.03A(3)(b)(ix) Trusts created by the same grantor;

011.03A(3)(b)(x) Officers of a corporation as to status of salaries

disallowed to the corporation as a deduction;

011.03A(3)(b)(xi) A corporation and its stockholder(s).

011.03A(3)(c) The same taxpayer has received separate notices of

proposed deficiency determination regarding his or her own tax and

regarding his or her liability as transferee, or has received separate

proposed deficiency notices regarding his or her liability as transferee of

two or more different transfers.

011.03A (3)(d) Different corporations, which have the same stockholders.

011.04 Amendments.

011.04A A petition or claim may be amended at any time before notice of the hearing is

issued. In all other cases, a petitioner or claimant must request permission to amend from

the Hearing Officer. The request to prepare an amended petition shall be considered good

cause for a continuance and the Hearing Officer, on his or her own motion or on the

motion of any of the parties, may continue the hearing. If a continuance is granted, a copy

of the order will be served upon all parties.

011.04B The Hearing Officer may also allow, in his or her discretion, the filing of

supplemental pleadings alleging facts material to the case occurring after the original

pleadings were filed. The Hearing Officer may also permit amendment of pleadings

where a mistake appears or where amendment does not materially change a claim or

defense.

011.05 Informal Disposition. Unless otherwise precluded by law, informal disposition may be

made of any contested case.

(Sections 77-369, 84-909, 84-909.01 and 84-913.01 to 84-913.03 R.R.S. 2008, and

section 77-375, R.S. Supp. 2008)


August 4, 2009

REG-33-012 CONDUCTING A CONTESTED CASE HEARING

012.01 Scheduling of hearings. The time and place of any hearing shall be set by the

Hearing Officer after proceedings have commenced. The hearing shall be scheduled as soon as

practicable. Written notice of the time and place of any hearing shall be given at least ten days

prior to the date of hearing unless notice is waived by the parties.

012.02 Conduct of hearing. A hearing shall be conducted by a Hearing Officer who,

among other things, will open the proceedings, take appearances, administer oaths, subpoena

witnesses, hear the evidence, rule on the motions and objections, question witnesses, and close

the proceedings. If the petitioner or claimant is not represented by anyone qualified to make an

appearance on his or her behalf, the Hearing Officer shall explain to the petitioner or claimant

the Rules of Practice and Procedure and generally conduct the hearing in a less formal manner

than that used when a petitioner or claimant has a representative qualified to appear on his or her

behalf.

012.02A In any hearing, every party has the right to present evidence and testimony of

witnesses and to cross-examine any witness who testifies on behalf of an adverse party.

Every party shall have an opportunity to present evidence and testimony as rebuttal to

evidence presented by another party, except that repetitious evidence shall be excluded.

The parties should be prepared to make oral argument as to the law at the conclusion of a

hearing. A written memorandum of law may be filed at the time of the hearing at the

discretion of any party or at a subsequent time if the Hearing Officer orders.

012.02B The Hearing Officer may conduct the hearing in the following order.

012.02B(1) The hearing is called to order by the Hearing Officer. Any

preliminary motions, stipulations or agreed orders are entertained.

012.02B(2) Each party may make an opening statement. Opening statements

take place in the same order as the presentation of evidence.

012.02B(3) Presentation of Evidence.

012.02B(3)(a) Evidence will be received in the order directed by the

Hearing Officer.

012.02B(3)(a)(i) Evidence is presented by the party directed by the

Hearing Officer to begin;

012.02B(3)(a)(ii) Evidence is presented by the other party;

012.02B(3)(a)(iii) Rebuttal evidence is presented by the party that

went first; and


August 4, 2009

012.02B(3)(a)(iv) Surrebuttal evidence is presented by the other

party.

012.02B(3)(b) With regard to each witness who testifies, the following

examination may be conducted.

012.02B(3)(b)(i) Direct examination conducted by the party who

calls the witness;

012.02B(3)(b)(ii) Cross-examination by the opposing party;

012.02B(3)(b)(iii) Redirect examination by the party who called

the witness; and

012.02B(3)(b)(iv) Recross-examination by the opposing party.

012.02B(3)(c) After evidence is presented, each party may have the

opportunity to make a closing argument. Closing arguments shall be made

in the same order as the presentation of evidence. The Hearing Officer

may order that parties submit briefs in lieu of closing arguments.

012.02C Hearings will usually be recorded electronically and not transcribed at the time

of the hearing. A court reporter will be retained for the hearing if:

012.02C(1) The Hearing Officer determines that the complexity of the facts and

issues require a court reporter to be present to make a verbatim transcript of the

proceedings, or

012.02C(2) Any party requests that a court reporter be present to make a verbatim

transcript of the proceedings and agrees to make the arrangements for the court

reporter and pay the initial cost.

012,02C(3) The cost of the court reporter shall be part of the costs to be assessed

under subsection 012.09 of this regulation.

012.03 Production of evidence and testimony. The Hearing Officer may administer oaths

and issue subpoenas, in accordance with the rules of civil procedure as permitted by law,

compelling the attendance of witnesses and the production of records, papers, books, and

accounts and documents in accordance with district court rules. Subpoenas and orders issued

under this subsection may be enforced by the district court.

012.03A If a subpoena is desired, the requesting party shall indicate to the Hearing

Officer the name of the case and names and last known addresses of the witnesses to be

subpoenaed. If evidence other than oral testimony is required, each item to be produced

must be adequately described. When properly prepared, the subpoena will be returned to


August 4, 2009

the requesting party for service. Service may be made either by mailing a copy by

certified mail, return receipt requested, not less than six days before the hearing date of

the cause which the witness is required to attend or, personally, by any person not

interested in the action. No costs for serving a subpoena will be allowed.

012.03B All testimony presented before the Hearing Officer shall be given under oath.

012.04 The Hearing Officer may admit and give probative effect to evidence which

possesses probative value commonly accepted by reasonably prudent persons in the conduct of

their affairs, and may exclude incompetent, irrelevant, immaterial, and unduly repetitious

evidence.

012.04A Any party may request that the proceeding be bound by the Nebraska Evidence

Rules as applicable in the district courts. The party shall file with the Hearing Officer, at

least three days prior to the date of the scheduled hearing, a written request that the

hearing be so conducted. The request for the application of the Nebraska Evidence Rules

as applicable in the district courts shall be in writing and shall include the requesting

party’s agreement to be liable for the payment of costs incurred upon any appeal or

review, including the cost of court reporting services, which the requesting party shall

procure for the hearing.

012.04B Documentary evidence may be received in the form of copies or excerpts or

incorporated by reference. A copy of any book, record, paper, or document may be

offered directly in evidence in lieu of the original, where the original is unavailable or

where there is no objection, and where the original is admitted in evidence, a copy may

be substituted later for the original or any part that may be material or relevant upon leave

granted in the discretion of the Hearing Officer.

012.04C All evidence, including records and documents in the possession of the

Department which the Department desires to use, shall be offered and made a part of the

record in the case. No factual information or evidence other than the record shall be

considered in the determination of the case.

012.04D Evidence of a federal tax determination including, but not limited to, a Treasury

Department determination letter, a federal court decision, or an Internal Revenue Service

assessment relating to issues raised in the proceeding, shall be presumed to be accurate

unless rebutted.

012.04E The Hearing Officer shall give effect to the rules of privilege recognized by law.

012.04F The Hearing Officer may take official notice of cognizable facts, and in addition,

may take official notice of general, technical, or scientific facts within the specialized

knowledge of the Department and the rules and regulations adopted and promulgated by

the Department, if:


August 4, 2009

012.04F(1) The parties are notified either before or during the hearing or by

reference in preliminary reports or otherwise of materials so noticed;

012.04F(2) Parties are afforded an opportunity to contest facts so noticed; and

012.04F(3) The record contains a written record of each item officially noticed.

012.05 Conducting the hearing by electronic means. The Hearing Officer may, at his or

her discretion, conduct all or a part of the hearing by telephone, television, or other electronic

means if each participant in the hearing has an opportunity to participate in, to hear, and if

technically feasible, to see the entire proceeding while it is taking place.

012.06 Exhibits.

012.06A Identification of exhibits. Exhibits attached to a stipulation or entered in

evidence shall be numbered serially, i.e., 1, 2, 3, etc.

012.06B Disposition of exhibits. Any party desiring the return of any exhibit, at his or her

own expense, shall apply in writing to the Hearing Officer within 30 days after an order

of the Tax Commissioner has become final, suggesting a practical manner of delivery. In

all other cases, exhibits may be disposed of as the Hearing Officer deems advisable.

012.07 Evidence outside the record. Except as provided by these regulations, the Hearing

Officer will not consider factual information or evidence in the determination of any proceeding

unless it has been offered and made a part of the record in the proceeding.

012.08 Official record. The Department shall prepare an official record, including

testimony and exhibits, in each contested case.

012.08A The Department shall maintain an official record of each contested case under

the Administrative Procedure Act for at least four years following the date of the final

order.

012.08 B The Department’s official record shall consist of only:

012.08B(1) Notices of all proceedings;

012.08B(2) Any pleadings, motions, requests, preliminary or intermediate rulings

and orders, and similar correspondence to or from the Department relating to the

contested case;

012.08B(3) The record of the hearing, including all exhibits and evidence

introduced during the hearing, a statement of matters officially noticed by the

Hearing Officer during the proceeding, and all proffers of proof and objections

and rulings thereon; and


August 4, 2009

012.08B(4) The final order.

012.08C It is not necessary to transcribe electronically recorded proceedings unless a

transcript is requested by a party or is required for purposes of appeal. If requested, the

transcript and record shall be furnished by the Department upon the payment of the cost

of preparation.

012.08D As provided in subsection 33-009.04 of these regulations, the Hearing Officer,

Tax Commissioner, or employee who is or may reasonably be expected to be involved in

the decision making process of the contested case, who receives or who makes or

knowingly causes to be made an ex parte communication as set forth in that subsection,

shall make the appropriate filings which shall be included in the official record of the

contested case.

012.08E Except to the extent that the Administrative Procedure Act or another statute

provides otherwise, the Department’s official record shall constitute the exclusive basis

for Department action in contested cases under the act and for judicial review.

012.08F Any party to the case may request and obtain a certified copy of the

Department’s official record of the hearing. Charges for preparing the certified copy of

the record shall be paid by the party requesting it.

012.09 Costs. All costs of a formal hearing shall be paid by the party or parties against

whom a final decision is rendered.

(Sections 77-369 and 77-376, R.R.S. 2003, sections 84-909, 84-909.01 84-913, 84-914,

84-915, 84-915.01 and 84-916, R.R.S. 2008, and sections 77-375, 77-2709, 77-2711, 77-2792,

and 77-27,119, R.S. Supp. 2008.)


August 4, 2009

REG-33-013 BURDEN OF PROOF

013.01 The burden of proof in any proceeding shall be on the permitholder, petitioner, or

claimant except for the following issues where the burden of proof is on the Tax Commissioner:

013.01A Whether the petitioner is guilty of fraud with attempt to evade tax.

013.01B Whether the petitioner is liable as the transferee of property of a taxpayer. The

burden of proof on the issue of the transferor’s liability remains with the petitioner.

013.01C Whether the petitioner is liable for any increase in a proposed deficiency

determination which is asserted after a notice of proposed deficiency determination was

mailed and after a protest petition under section 77-2778, R.S.Supp., 2008 was filed. The

burden of proof on issues relating to increases resulting from changes or corrections of

federal taxable income reportable under Section 77-2775, R.S. Supp., 2008, remains with

the petitioner if the Tax Commissioner had no notice of the federal change when the

notice of proposed deficiency determination was mailed.

013.01D Whether the petitioner is liable for any penalty imposed under subsection (7) or

(8) of section 77-2790, R.S. Supp., 2008.

(Section 77-2781, R.R.S. 2003)


August 4, 2009

REG-33-014 DETERMINATION BY THE TAX COMMISSIONER

014.01 The Tax Commissioner may utilize the Department’s experience, technical

competence and specialized knowledge in the evaluation of the evidence presented to him or her.

014.02 Every decision and order adverse to a party to the proceeding, rendered by an

agency in a contested case, shall be in writing or stated in the record and shall be accompanied

by findings of fact and conclusions of law.

014.03 The Tax Commissioner’s decision and order should include:

014.03A The Department’s name and the name of the proceeding;

014.03B The time and place of the hearing;

014.03C The names of all parties and any representative who entered an appearance on

behalf of a party at the hearing;

014.03D The findings of fact, including of a concise statement of the conclusions upon

each contested issue of fact;

014.03E The conclusions of law consisting of the applications of the controlling law to

the facts found and the legal results arising from the law and facts; and

014.03F The order consisting of the action taken by the Department as a result of the

facts found and the legal conclusions arising from the law and facts.

014.04 Notification of a determination of the Tax Commissioner under all proceedings

shall be served on the petitioner, claimant, or permitholder, in person or by mail. If service is by

certified mail, return receipt requested, service upon the petitioner will be considered to have

been completed as of the date of deposit in the United States post office. If notice is served

personally, service upon the petitioner will be considered to have been completed as of the date

of delivery.

(Sections 77-1780, and 77-27,126, R.R.S. 2003, sections 84-915, and 84-917, R.R.S. 2008, and

section 77-2796, R.S. Supp., 2008)


August 4, 2009

REG-33-015 APPEALS

015.01 Any person aggrieved by a final decision in a contested case is entitled to judicial

review under the Administrative Procedure Act or to resort to such other means of review as may

be provided by law.

015.02 Parties desiring to appeal a final order of the Tax Commissioner must file a

petition for review in the district court of Lancaster County, Nebraska within 30 days after the

service of the final order of the Tax Commissioner. The period for appeal commences to run

from the date of service of the notification of a determination by the Tax Commissioner to the

parties or their attorneys of record. Service of the petition and summons must be made in

accordance with Nebraska law.

(Sections 77-1781, 77-2780, 77-27,127, and 77-27,128, R.R.S. 2003, section 9-624

R.R.S., 2007, sections 84-917, and 84-919, R.R.S. 2008, and section 77-2796 R.S. Supp., 2008)


August 4, 2009

REPEALER

Title 316, Chapter 33, Section 1 through 14 and Title 316, Chapter 35, Sections 100 through 113

are repealed.

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